The Option Formerly Known as Nuclear

The National Review's Byron York reported today on the latest wheelings and dealings in the Senate over the judicial filibuster controversy. York claims that a negotiated peace might still yet be in the works, and that negotiations will truly begin in earnest once Frist reveals when he plans on invoking the dreaded nuclear option (or, in Republican parlance, the "Constitutional option"). That date may come as early as next week.

York reports that one arrangement under consideration would permit the Democrats to keep blocking the ten or so judicial nominees who have not yet been brought up for a vote, in exchange for a Democratic promise not to filibuster any of President Bush's Supreme Court nominees.

Such a deal doesn't sound so bad, if you really believe that the Democrats would abide by their promise. I have my doubts. If Bush were to nominate a judge in the mold of Clarence Thomas or Antonin Scalia to the Court, the pressure put on Senate Democrats by liberal special interest groups (People for the American Way, NARAL, the NAACP, etc.) to block the appointment would be enormous. It is unlikely that a secret backroom vow to Senate Republicans would withstand such pressure. Or, if Democrats admitted that they were breaking a promise not to filibuster, they would likely place the blame squarely on President Bush for "violating their good faith" with this "extremist" nominee. Can't you just hear them now.

But I am also leery of ending filibusters for judicial nominees, not because it is "unconstitutional"--as the reliably hyperbolic Senate Democrats keep insisting--but because it would make the Republicans the focal point for all the controversy, instead of the pressure being on the Democrats, where it belongs. Ideally, I'd like to see the Republicans call the Democrats' bluff by actually making them filibuster a few nominees, instead of just threatening to filibuster them. Beyond the obvious comic value of watching Ted Kennedy read out of the phone book for hours on end, it would have the added benefit of individualizing the opposition. As things stand now, Democratic senators from red states can hide behind Harry Reid and Chuck Schumer, safe in the knowledge that they are only one of 45 or so. Their Bush-voting constituents will never know. But if they were actually forced to take the floor and filibuster, it would illustrate all-too-well to the red states just who is opposing Bush's nominess. I predict many Democrats, especially those up for reelection next year, would wilt under this harsh spotlight.

The Republicans can get their judges, and they can do it in a way that would limit any potential political backlashes.